A.P.
Pollution Control Board Vs. Prof. M. V. Nayudu (Retd.) & Ors [1999] INSC 11
(27 January 1999)
S.B.
Majmudar. & M. Jagannadha., M.JAGANNADHA RAO,J.
Leave
granted in all the special leave petitions.
It is
said:
"The
basic insight of ecology is that all living things exist in interrelated
systems; nothing exists in isolation. The world system is weblike;
to
pluck one strand is to cause all to vibrate;
whatever
happens to one part has ramifications for all the rest. Our actions are not
individual but social; they reverberate throughout the whole ecosystem".
[Science Action Coalition by A.Fritsch, Environmental Ethics: Choices for
Concerned Citizens 3-4 (1980)]. (1988) Vol.12 Harv.Env.L.Rev. at 313)."
Four of these appeals which arise out of SLP(C) No.10317-10320 of 1998 were
filed against the judgment of the Andhra Pradesh High Court dated 1.5.1998 in
four writ petitions, namely, W.P. No.
17832
of 1997 and three other connected writ petitions. All the appeals were filed by
the A.P.
Pollution
Control Board. Three of the above writ petitions were filed as public interest
cases by certain persons and the fourth writ petition was filed by the Gram
Panchayat, Peddaspur.
The
fifth Civil Appeal which arises out of SLP(C) No.13380 of 1998 was filed
against the judgment in W.P. No.16969 of 1997 by the Society for Preservation
of Environment & Quality of Life, (for short `SPEQL') represented by Sri
P.Janardan Reddi, the petitioner in the said writ petition.
The
High Court dismissed all these writ petitions.
The
sixth Civil appeal which arises out of SLP(C) No.10330 of 1998 was filed by
A.P.Pollution Control Board against the order dated 1.5.1998 in Writ Petition
No.11803 of 1998. The said writ petition was filed by M/s Surana Oils and
Derivatives (India) Ltd. (hereinafter called the
`respondent company', for implementation of the directions given by the
appellate authority under the Water (Prevention of Pollution) Act, 1974
(hereinafter called the `Water Act, 1974') in favour of the company.
In
other words, the A.P. Pollution Board is the appellant in five appeals and the
SPEQL is appellant in one of the appeals.
According
to the Pollution Control Board, under the notification No. J.20011/15/88-iA,
Ministry of Environment & Forests, Government of India dated 27.9.1988, `vegetable
oils including solved extracted oils' (Item No.37) was listed in the `RED'
hazardous category. The Pollution Board contends that Notification No.
J.120012/38/86 1A, Ministry of Environment & Forests of Government of India
dated 1.2.1989, prohibits the location of the industry of the type proposed to
be established by the respondent company, which will fall under categorisation
at No.11 same category of industry in Doon
Valley.
On
31.3.1994, based on an Interim Report of the Expert Committee constituted by
the Hyderabad Metropolitan Water Supply and Sewerage Board, the Municipal
Administration and Urban Development, Government of Andhra Pradesh issued GOMs
192 dated 31.3.1994 prohibited various types of development within 10 k.m.
radius of the two lakes, Himayat Sagar & Osman Sagar, in order to monitor
the quality of water in these reservoirs which supply water to the twin cities
of Hyderabad and Secunderabad.
In
January 1995, the respondent company was incorporated as a public limited
company with the object of setting up an industry for production of B.S.S.
Castor oil derivatives such as Hydrogenated Castor Oil, 12-Hydroxy Stearic
Acid, Dehydrated Castor Oil, Methylated 12-HSA, D.Co., Fatty Acids with by
products - like Glycerine, Spent Bleaching Earth and Carbon and Spent Nickel
Catalyst. Thereafter the industry applied to the Ministry of Industries,
Government of India for letter of intent under the Industries (Development
Regulation) Act, 1951.
The
respondent Company purchased 12 acres of land on 26.9.1995 in Peddashpur
village, Shamshabad Mandal. The Company also applied for consent for
establishment of the industry through the single window clearance committee of
the Commissionerate of Industries, Government of Andhra Pradesh, in November,
1995. On 28.11.1995, the Government of Andhra Pradesh, wrote to the Ministry of
Industry, Government of India as follows:
"The
State Government recommends the aplication of the unit for grant of letter of
intent for the manufacture of B.S.S. Grade Castor Oil in relaxation of
locational restriction subject to NOC from A.P.Pollution Control Board, prior
to taking implementation steps." On 9.1.1996, the Government of India
issued letter of intent for manufacture of B.S.S. grade Castor Oil (15,000 tons
per annum) and Glycerine (600 tons per annum). The issuance of licence was
subject to various conditions, inter-alia, as follows:
"(a)
you shall obtain a confirmation from the State Director of Industries that the
site of the project has been approved from the environmental angle by the
competent State authority.
(b) you
shall obtain a certificate from the concerned State Pollution Control Board to
the effect that the measures envisaged for pollution control and the equipment
proposed to be installed meet their requirements." Therefore, the
respondent company had to obtain NOC from the A.P. Pollution Control Board.
According
to the A.P. Pollution Control Board (the appellant), the respondent company
could not have commenced civil works and construction of its factory, without
obtaining the clearance of the A.P.Pollution Control Board - as the relaxation
by government from location restriction as stated in their letter dated
28.11.1995, was subject to such clearance. On 8.3.1996, on receipt of the 2nd
Interim Report of the Expert Committee of the Hyderabad Metropolitan Water
Supply and Sewerage Board, the Municipal Administration and Urban Development
Department issued GO No.111 on 8.3.1996 reiterating the 10 k.m. prohibition as
contained in the GO 192 dated 31.3.1994 but making some concessions in favour
of residential development.
In the
pre-scrutiny stage on 24.5.1996 by the Single Window Clearance Committee, which
the company's representative attended, the application of the industry was
rejected by the A.P.
Pollution
Control Board since the proposed site fell within 10 k.m. and such a location
was not permissible as per GOMs 111 dated 8.3.96. On 31.5.1994, the Gram
Panchayat approved plans for establishing factory.
On
31.3.1996, the Commissionerate of Industries, rejected the location and
directed alternative site to be selected. On 7.9.1996, the Dt.Collector granted
permission for conversion of the site (i.e. within 10 k.m.) to be used for non-
agricultural purposes.
On
7.4.1997, the company applied to the A.P.
Pollution
Control Board, seeking clearance to set- up the unit under section 25 of the
Water Act. It may be noted that in the said application, the Company listed the
following as by-products of its processes:
"Glycerine,
spent bleaching earth and carbon and spent nickel catalysts." According to
the AP Pollution Board the products manufactured by this industry would lead to
the following sources of pollution:
"(a)
Nickel (solid waste) which is heavy- metal and also a hazardous waste under
Hazardous Waste (Management and Handling) Rules, 1989.
(b)
There is a potention of discharge or run off from the factory combined joining
oil and other waste products.
(c)
Emission of Sulpher Dioxide and oxide of nitrogen.
It was
at that juncture that the company secured from the Government of A.P. by GOMs
153 dated 3.7.1997 exemption from the operation of GOMs 111 of 8.3.1996 which
prescribed the 10 k.m. rule from the Osman Sagar and Himayat Sagar Lakes.
In
regard to grant of NOC by the A.P. Pollution Board, the said Board by letter dated
30.7.1997 rejected the application dated 7.4.1997 for consent, stating
"(1) The unit is a polluting industry and falls under the red category of
polluting industry under section S.No.11 of the classification of industries
adopted by MOEF, GOI and opined that it would not be desirable to locate such
industry in the catchment area of Himayatsagar in view of the GOMs No.111 dated
8.3.1996.
(2)
The proposal to set up this unit was rejected at the pre-scrutiny level during
the meeting of CDCC/DIPC held on 24.5.1996 in view of the State Government
Order No.111 dated 8.3.1996." Aggrieved by the above letter of rejection,
the respondent company appealed under section 28 of the Water Act. Before the
appellate authority, the industry, filed an affidavit of Prof.
M.Santappa
Scientific Officer to the Tamil Nadu Pollution Control Board in support of its
contentions. The appellate authority under section 28 of the Water Act, 1974
(Justice M.Ranga Reddy, (retd.)) by order dated 5.1.1998 allowed the appeal of
the Company. Before the appellate authority, as already stated, an affidavit
was filed by Prof. M.Shantappa, a retired scientist and technologist (at that
time, Scientific Advisor for T.N. Pollution Control Board) stating that the
respondent had adopted the latest eco-friendly technology using all the
safeguards regarding pollution. The appellate authority stated that Dr.Siddhu,
formerly Scientific to the Government of India and who acted as Director
General, Council of Scientific and Industrial Research (CSIR) and who was the
Chairman of the Board of Directors of this Company also filed an affidavit.
The
Managing Director of the respondent company filed an affidavit explaining the
details of the technology employed in the erection of the plant.
Prof.
M.Shantappa in his report stated that the company has used the technology
obtained from the Indian Institute of Chemical Technology of (IICT), Hyderabad which is a premier institute and
that he would not think of a better institute in the country for transfer of
technology. The said Institute has issued a certificate that this industry will
not discharge any acidic effluents and the solid wastes which are the by
-products are saleable and they will be collected in M.S.
drums
by mechanical process and sold. The report of Dr. Shantappa also showed that
none of the by-products would fall on the ground of the factory premises. He
also stated that all the conditions which were proposed to be imposed by the
Technical Committee on the company at its meeting held on 16.7.97 have been
complied with.
On the
basis of these reports, the appellate authority stated that this industry
"is not a polluting industry". It further held that the notification
dated 1.2.1989 of the Ministry of Environment & Forests, Government of
India, whereby industries manufacturing Hydrogenated Vegetable oils were
categorised as "red category" industries, did not apply to the
catchment areas of Himayat Sagar and Osman Sagar lakes and that notification
was applicable only to the Doon Valley of UP and Dahanu in Maharashtra. The
appellate authority accordingly directed the AP Pollution control Board to give
its consent for establishment of the factory on such conditions the Board may
deem fit as per GOMs 153 dated 3.7.1997 (as amended by GO 181 dated 7.8.1997).
Before
the above order dated 5.1.98 was passed by the appellate authority, some of
these public interest cases had already been filed. After the 5.1.98 order of
the appellate authority, a direction was sought in the public interest case
W.P.No.2215 of 1996 that the order dated 5.1.1998 passed by the appellate
authority was arbitrary and contrary to interim orders passed by the High Court
in W.P. 17832, 16969 and 16881 of 1997.
The
respondent company, in its turn filed WP No.11803 of 1998 for directing the A.P.
Pollution Control Board to give its consent, as a consequence to the order of
the appellate authority dated 5.1.1998. As stated earlier, the A.P. Pollution
Control Board contends that the categorisation of industries into red, green
and orange had already been made prior to the notification of 1.2.1989 by
Office Memorandum of the Ministry of Environment & Forests, Government of
India dated 27.9.1988 and that in that notification also "Vegetable oils
including solvent extracted oils" (Item No.7) and `Vanaspati Hydrogenated
Vegetable oils for industrial purposes (Item 37)" were also included in
the red category. It also contends that the company could not have started
civil works unless NOC was given by the Board. The Division Bench of the High
Court in its judgment dated 1.5.1998, held that the writ petitioners who filed
the public interest cases could not be said to be having no locus standi to
file the writ petitions. The High Court observed that while the Technical
Committee of the A.P. Pollution Control Board had, some time before its
refusal, suggested certain safeguards to be followed by the company, the Board
could not have suddenly refused the consent and that this showed double
standards. The High Court referred to the order of the Appellate authority
under Section 28 of the Water Act dated 5.1.98 and the report of Dr.Sidhu, to
the effect that even if hazardous waste was a by-product, the same could be
controlled if the safeguards mentioned in the Hazardous Wastes (Management and
Handling) Rules, 1989 were followed and in particular those in Rules 5,6 and
11, were taken. The Rules made under Manufacture, Storage and Import of
Hazardous Chemical (MSIHC) Rules 1989 also permit industrial actively provided
the safeguards mentioned therein are taken. The Chemical Accidents (Emergency
Planning, Preparedness and Response) Rules 1991 supplement the MSIHC Rules,
1989 on accident preparedness and envisage a 4-tier crisis management system in
the country. Therefore, merely because an industry produced hazardous substances,
the consent could not be refused. It was stated that as the matter was highly
technical, interference was not called for, as "rightly" contended by
the learned counsel for the respondent company. The High Court could not sit in
appeal over the order of the appellate authority. For the above reasons, the
High Court dismissed the three public interest cases, and the writ petitions
filed by the Gram Panchayat. The High Court allowed the writ petition filed by
the respondent industry and directed grant of consent by the A.P. Pollution
Control Board subject to such conditions as might be imposed by the Board.
It is
against the said judgment that the A.P. Pollution Control Board has filed the
five appeals. One appeal is filed by SPEQL. In these appeals, we have heard the
preliminary submission of Shri R.N.Trivedi, learned Additional Solicitor
General for the A.P. Pollution Control Board, Shri M.N.Rao, learned senior
counsel for the respondent company, and Sri P.S.Narasimha for the appellant in
the appeal arising out of SLP (C) No.13380 of 1998 and others. It will be
noticed that various issues arise in these appeals concerning the validity of
the orders passed by the A.P. Pollution Control Board dated 30.7.97, the
correctness of the order dated 5.1.98 of the Appellate Authority under Section
28 of the Water Act, the validity of GOMs No.153 dated 3.7.97 by which
Government of A.P. granted exemption for the operation of the 10 k.m. rule in
GOMs 111 dated 8.3.1996. Questions also arise regarding the alleged breach of
the provisions of the Act, Rules or notification issued by the Central
Government and the standards prescribed under the Water Act or rules or
notifications. Question also arises whether the "appellate" authority
could have said that as it was a highly technical matter, no interference was
called for. We are just now not going into all these aspects but are confining
ourselves to the issues on the technological side. In matters regarding
industrial pollution and in particular, in relation to the alleged breach of
the provisions of the Water (Prevention and Control of Pollution) Act, 1974,
its rules or notifications issued thereunder, serious issues involving
pollution and related technology have been arising in appeals under Article 136
and in writ petitions under Article 32 of the Constitution of India filed in
this Court and also in writ petitions before High Courts under Article 226. The
cases involve the correctness of opinions on technological aspects expressed by
the Pollution Control Boards or other bodies whose opinions are placed before
the Courts. In such a situation, considerable difficulty is experienced by this
Court or the High Courts in adjudicating upon the correctness of the
technological and scientific opinions presented to the Courts or in regard to
the efficacy of the technology proposed to be adopted by the industry or in
regard to the need for alternative technology or modifications as suggested by
the Pollution Control Board or other bodies. The present case illustrates such
problems. It has become, therefore, necessary to refer to certain aspects of
environmental law already decided by this Court and also to go into the above
scientific problems, at some length and find solutions for the same.
Environment Courts/Tribunals - problems of complex technology:
The
difficulty faced by environmental courts in dealing with highly technological
or scientific data appears to be a global phenomenon.
Lord
Woolf, in his Garner lecture to UKELA, on the theme "Are the Judiciary
Environmentally Myopic?" (See 1992 J.Envtl. Law Vol.4, No.1, P1) commented
upon the problem of increasing specialisation in environmental law and on the
difficulty of the Courts, in their present form, moving beyond their
traditional role of detached "Wednesbury" review.
He
pointed out the need for a Court or Tribunal "having a general
responsibility for overseeing and enforcing the safeguards provided for the
protection of the environment ....... The Tribunal could be granted a wider
discretion to determine its procedure so that it was able to bring to bear its
specialist experience of environmental issues in the most effective way"
Lord Woolf pointed out the need for "a multi- faceted, multi-skilled body
which would combine the services provided by existing Courts, Tribunals and
Inspectors in the environmental field. It would be a `one stop shop', which
should lead to faster, cheaper and the more effective resolution of disputes in
the environmental area. It would avoid increasing the load on already over
burdened lay institutions by trying to compel them to resolve issues with which
they are not designed to deal. It could be a forum in which the Judges could
play a different role. A role which enabled them not to examine environmental
problems with limited vision. It could however be based on our existing
experience, combining the skills of the existing inspectorate, the Land
Tribunal and other administrative bodies.
It
could be an exciting project" According to Lord Woolf, "while
environmental law is now clearly a permanent feature of the legal scene, it
still lacks clear boundaries." It might be `preferable that the boundaries
are left to be established by Judicial decision as the law developed. After
all, the great strength of the English Law has been its pragmatic approach".
Further,
where urgent decisions are required, there are often no easy options for
preserving the status quo pending the resolution of the dispute.
If the
project is allowed to go ahead, there may be irreperable damage to the
environment; if it is stopped, there may be irreperable damage to an important
economic interest. (See Environment Enforcement: The need for a specialised
court - by Robert Cranworth QC (Jour of Planning & Environment, 1992 p.798
at 806). Robert Cranworth advocates the constitution of a unified tribunal with
a simple procedure which looks to the need of customers, which takes the form
of a Court or an expert panel, the allocation of a procedure adopted to the
needs of each case - which would operate at two levels - first tier by a single
Judge or technical person and a review by a panel of experts presided over by a
High Court Judge - and not limited to `Wednesbury' grounds. In the USA the
position is not different. It is accepted that when the adversary process
yields conflicting testimony on complicated and unfamiliar issues and the
participants cannot fully understand the nature of the dispute, Courts may not
be competent to make reasoned and principled decisions.
Concern
over this problem led the Carnegie Commission of Science & Technology
(1993) and the Government to undertake a study of the problems of science and
technology in Judicial decision making. In the introduction to its final
report, the Commission concluded:
"The
Courts' ability to handle complex science-rich cases has recently been called
into - question, with widespread allegations that the Judicial system is
increasingly unable to manage and adjudicate science and technology (S&T)
issues. Critics have objected that Judges cannot make appropriate decisions
because they lack technical training, that the Jurors do not comprehend the
complexity of the evidence they are supposed to analyze, and that the expert
witnesses on whom the system relies are merceneries whose biased testimony
frequently produces erroneous and inconsistent determinations. If these claims
go unanswered, or are not dealt with, confidence in the Judiciary will be
undermined as the public becomes convinced that the Courts as now constituted
are incapable of correctly resolving some of the more pressing legal issues of
our day." The uncertain nature of scientific opinions:
In the
environment field, the uncertainity of scientific opinions has created serious
problems for the Courts. In regard to the different goals of Science and the
law in the ascertainment of truth, the U.S. Supreme Court observed in Daubert
vs. Merrel Dow Pharmaceuticals Inc. (1993) 113 S.Ct 2786, as follows:
"......there
are important differences between the quest for truth in the Court- room and
the quest for truth in the laboratory. Scientific conclusions are subject to
perpetual revision.
Law,
on the other hand, must resolve disputes finally and quickly." It has also
been stated by Brian Wynne in `Uncertainity and Environmental Learning, (2.
Global Envtl.Change 111) (1992):
"Uncertainity,
resulting from inadequate data, ignorance and indeterminacy, is an inherent
part of science." Uncertainity becomes a problem when scientific knowledge
is institutionalised in policy making or used as a basis for decision-making by
agencies and courts. Scientists may refine, modify or discard variables or
models when more information is available; however, agencies and Courts must
make choices based on existing scientific knowledge. In addition, agency
decision making evidence is generally presented in a scientific form that
cannot be easily tested. Therefore, inadequacies in the record due to
uncertainity or insufficient knowledge may not be properly considered. (The
Status of the Precautionary Principle in Australia : by Charmian Barton
(Vol.22) (1998) (Harv. Envtt. Law Review p.509 at pp510-511).
The
inadequacies of science result from identification of adverse effects of a
hazard and then working backwards to find the causes.
Secondly,
clinical tests are performed, particularly where toxins are involved, on
animals and not on humans, that is to say, are based on animals studies or
short-term cell testing.
Thirdly
conclusions based on epidemiological studies are flawed by the scientist's
inability to control or even accurately assess past exposure of the subjects.
Moreover, these studies do not permit the scientist to isolate the effects of
the substance of concern. The latency period of many carcinogens and other
toxins exacerbates problems of later interpretation. The timing between
exposure and observable effect creates intolerable delays before regulation
occurs. (See Scientific Uncertainity in Protective Environmental Decision
making - by Alyson C. Flournay (Vol.15) 1991 Harv. Envtt. Law Review p.327 at
333-335).
It is
the above uncertainity of science in the environmental context, that has led
International Conferences to formulate new legal theories and rules of
evidence. We shall presently refer to them.
The
Precautionary Principle and the new Burden of Proof - The Vellore Case:
The
`uncertainity' of scientific proof and its changing frontiers from time to time
has led to great changes in environmental concepts during the period between
the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore
Citizens' Welfare Forum vs. Union of India and Others [1996 (5) SCC 647], a
three Judge Bench of this Court referred to these changes, to the
`precautionary principle' and the new concept of `burden of proof' in
environmental matters.
Kuldip
Singh, J. after referring to the principles evolved in various international
Conferences and to the concept of `Sustainable Development', stated that the
Precautionary Principle, the Polluter-Pays Principle and the special concept of
Onus of Proof have now emerged and govern the law in our country too, as is clear
from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in
the various environmental statutes, such as the Water Act, 1974 and other
statutes, including the Environment (Protection) Act, 1986, these concepts are
already implied. The learned Judge declared that these principles have now
become part of our law. The relevant observations in the Vellore Case in this
behalf read as follows:
"In
view of the above-mentioned constitutional and statutory provisions we have no
hesitation in holding that the Precautionary Principle and the Polluter Pays
Principle are part of the environmental law of the country." The Court
observed that even otherwise the above- said principles are accepted as part of
the Customary International Law and hence there should be no difficulty in
accepting them as part of our domestic law. In fact on the facts of the case
before this Court, it was directed that the authority to be appointed under
section 3(3) of the Environment (Protection) Act, 1986 "shall implement the
`Precautionary Principle' and the `Polluter Pays Principle'." The learned
Judges also observed that the new concept which places the Burden of Proof on
the Developer or Industralist who is proposing to alter the status quo, has
also become part of our environmental law.
The Vellore judgment has referred to these
principles briefly but, in our view, it is necessary to explain their meaning
in more detail, so that Courts and tribunals or environmental authorioties can
properly apply the said principles in the matters which come before them.
The
Precautionary Principle replaces the Assimilative Capacity Principle:
A
basic shift in the approach to environmental protection occured initially
between 1972 and 1982. Earlier the Concept was based on the `assimilative
capacity' rule as revealed from Principle 6 of the Stockholm Declaration of the
U.N.Conference on Human Environment, 1972. The said principle assumed that
science could provide policy-makers- with the information and means necessary
to avoid encroaching upon the capacity of the environment to assimilate impacts
and it presumed that relevant technical expertise would be available when
environmental harm was predicted and there would be sufficient time to act in
order to avoid such harm. But in the 11th Principle of the U.N. General
Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to
the `Precautionary Principle', and this was reiterated in the Rio Conference of
1992 in its Principle 15 which reads as follows:
"Principle
15: In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage; lack of full scientific certainity
shall not be used as a reason for proposing cost-effective measures to prevent
environmental degradation." In regard to the cause for the emergence of
this principle, Charmian Barton, in the article earlier referred to in Vol.22,
Harv. Envtt. L.Rev.
(1998)
p.509 at (p.547) says:
"There
is nothing to prevent decision makers from assessing the record and concluding
there is inadequate information on which to reach a determination. If it is not
possible to make a decision with "some" confidence, then it makes
sense to err on the side of caution and prevent activities that may cause
serious or irreverable harm. An informed decision can be made at a later stage
when additional data is available or resources permit further research. To
ensure that greater caution is taken in environmental management,
implementation of the principle through Judicial and legislative means is
necessary." In other words, inadequacies of science is the real basis that
has led to the Precautionary Principle of 1982. It is based on the theory that
it is better to err on the side of caution and prevent environmental harm which
may indeed become irreversible. The principle of precaution involves the
anticipation of environmental harm and taking measures to avoid it or to choose
the least environmentally harmful activity. It is based on Scientific
uncertainity. Environmental protection should not only aim at protecting
health, property and economic interest but also protect the environment for its
own sake.
Precautionary
duties must not only be triggered by the suspicion of concrete danger but also
by (justified) concern or risk potential. The precautionary principle was
recommended by the UNEP Governing Council (1989). The Bomako Convention also
lowered the threshold at which scientific evidence might require action by not
referring to "serious" or "irreversible" as adjectives
qualifying harm. However, summing up the legal status of the precautionary
principle, one commentator characterised the principle as still
"evolving" for though it is accepted as part of the international
customary law, "the consequences of its application in any potential
situation will be influenced by the circumstances of each case". (See *
First Report of Dr.Sreenivasa Rao Pemmaraju, Special -Rapporteur, International
Law Commission dated 3.4.1998 paras 61 to 72). The Special Burden of Proof in
Environmental cases: We shall next elaborate the new concept of burden of proof
referred to in the Vellore case at p.658 (1996 (5) SCC 647). In that case,
Kuldip Singh, J. stated as follows:
"The
`onus of proof' is on the actor or the developer/industralist to show that his
action is environmentally benign." ---------------------------------------------------
* Joint Secretary and Legal Adviser, Ministry of External Affairs, New Delhi.
It is to be noticed that while the inadequacies of science have led to the
`precautionary principle', the said `precautionary principle' in its turn, has
led to the special principle of burden of proof in environmental cases where
burden as to the absence of injurious effect of the actions proposed, - is
placed on those who want to change the status quo (Wynne, Uncertainity and
Environmental Learning, 2 Global Envtl. Change 111 (1992) at p.123). This is
often termed as a reversal of the burden of proof, because otherwise in
environmental cases, those opposing the change would be compelled to shoulder
the evidentiary burden, a procedure which is not fair. Therefore, it is
necessary that the party attempting to preserve the status quo by maintaining a
less- polluted state should not carry the burden of proof and the party who
wants to alter it, must bear this burden. (See James M.Olson, Shifting the
Burden of Proof, 20 Envtl.
Law
p.891 at 898 (1990)). (Quoted in Vol.22 (1998) Harv. Env.Law Review p.509 at
519, 550).
The
precautionary principle suggests that where there is an identifiable risk of
serious or irreversible harm, including, for example, extinction of species,
widespread toxic pollution in major threats to essential ecological processes,
it may be appropriate to place the burden of proof on the person or entity
proposing the activity that is potentially harmful to the environment. (See
Report of Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law
Commission, dated 3.4.1998, para 61). It is also explained that if the
environmental risks being run by regulatory inaction are in some way
"uncertain but non- negligible", then regulatory action is justified.
This will lead to the question as to what is the `non-negligible risk'.
In
such a situation, the burden of proof is to be placed on those attempting to
alter the status quo. They are to discharge this burden by showiung the absence
of a `reasonable ecological or medical concern'. That is the required standard
of proof. The result would be that if insufficient evidence is presented by
them to alleviate concern about the level of uncertainity, then the presumption
should operate in favour of environmental protection. Such a presumption has
been applied in Ashburton Acclimatisation Society vs. Federated Farmers of New
Zealand [1988 (1) NZLR 78]. The required standard now is that the risk of harm
to the environment or to human health is to be decided in public interest,
according to a `reasonable persons' test. (See Precautionary Principle in
Australia by Charmian Barton) (Vol.22) (1998) Harv. Env. L.Rev. 509 at 549).
Brief
Survey of Judicial and technical inputs in environmental appellate
authorities/tribunals:
We
propose to briefly examine the deficiencies in the Judicial and technical
inputs in the appellate system under some of our existing environmental laws.
Different statutes in our country relating to environment provide appeals to
appellate authorities. But most of them still fall short of a combination of
judicial and scientific needs.
For
example, the qualifications of the persons to be appointed as appellate
authorities under section 28 of the Water (Prevention and Control of
Polloution) Act, 1974, section 31 of the Air (Prevention and Control of
Pollution) Act, 1981, under Rule 12 of the Hazardous Wastes (Management and
Handling) Rules, 1989 are not clearly spelled out. While the appellate
authority under section 28 in Andhra Pradesh as per the notification of the
Andhra Pradesh Government is a retired High Court Judge and there is nobody on
his panel to help him in technical matters, the same authority as per the
notification in Delhi is the Financial Commissioner (see notification dated
18.2.1992) resulting in there being in NCT neither a regular judicial member
nor a technical one. Again, under the National Environmental Tribunal Act,
1995, which has power to award compensation for death or injury to any person
(other than workmen), the said Tribunal under section 10 no doubt consists of a
Chairman who could be a Judge or retired Judge of the Supreme or High Court and
a Technical Member. But section 10(1)(b) read with section 10(2)(b) or (c)
permits a Secretary to Government or Additional Secretary who has been a
Vice-Chairman for 2 years to be appointed as Chairman. We are citing the above
as instances of the grave inadequacies.
Principle
of Good Governance : Need for modification of our statutes, rules and
notifications by including adequate Judicial & Scientific inputs:
Good
Governance is an accepted principle of international and domestic law. It
comprises of the rule of law, effective State institutions, transparency and
accountability in public affairs, respect for human rights and the meaningful
participation of citizens - (including scientists) - in the political processes
of their countries and in decisions affecting their lives. (Report of the
Secretary General on the work of the Organization,Official records of the UN
General Assembly, 52 session, Suppl. I (A/52/1) (para 22)). It includes the
need for the State to take the necessary `legislative, administrative and other
actions' to implement the duty of prevention of environmental harm, as noted in
Article 7 of the draft approved by the Working Group of the International Law
Commission in 1996. (See Report of Dr.Sreenivasa Rao Pemmaraju, Special
Rapporteur of the International Law Commission dated 3.4.1998 on `Prevention of
transboundary damage from hazardous activities') (paras 103, 104). Of paramount
importance, in the establishment of environmental Courts, Authorities and
Tribunals is the need for providing adequate Judicial and scientific inputs
rather than leave complicated disputes regarding environmental pollution to
officers drawn only from the Executive.
It
appears to us from what has been stated earlier that things are not quite
satisfactory and there is an urgent need to make appropriate amendments so as
to ensure that at all times, the appellate authorities or tribunals consist of
Judicial and also Technical personnel well versed in environmental laws. Such
defects in the constitution of these bodies can certainly undermine the very
purpose of those legislations.
We
have already referred to the extreme complexity of the scientific or technology
issues that arise in environmental matters. Nor, as pointed out by Lord Woolf
and Robert Cranworth should the appellate bodies be restricted to Wednesbury
limitations.
The
Land and Environment Court of New South Wales in Australia, established in
1980, could be the ideal. It is a superior Court of record and is composed of
four Judges and nine technical and conciliation assessors. Its jurisdiction
combines appeal, judicial review and enforcement functions.
Such a
composition in our opinion is necessary and ideal in environmental matters.
In
fact, such an environmental Court was envisaged by this Court atleast in two
judgments. As long back as 1986, Bhagwati,CJ in M.C.Mehta vs. Union of India
and Shriram Foods & Fertilizers Case [ 1986 (2) SCC 176 (at page 202)]
observed:
"We
would also suggest to the Government of India that since cases involving issues
of environmental pollution, ecological destructions and conflicts over national
resources are increasingly coming up for adjudication and these cases involve
assessment and evolution of scientific and technical data, it might be
desirable to set up Environmental Courts on the regional basis with one
professional Judge and two experts drawn from the Ecological Sciences Research
Group keeping in view the nature of the case and the expertise required for its
adjudication. There would of course be a right of appeal to this Court from the
decision of the Environment Court." In other words, this Court not only
contemplated a combination of a Judge and Technical Experts but also an appeal
to the Supreme Court from the Environmental Court.
Similarly,
in the Vellore Case [1996 (5) SCC 647], while criticising the inaction on the
part of Government of India in the appointment of an authority under section
3(3) of the Environment(Protection) Act, 1996. Kuldip Singh, J. observed that
the Central Government should constitute an authority under section 3(3):
"headed
by a retired Judge of the High court and it may have other members - preferably
with expertise in the field of pollution control and environmental protection -
to be appointed by the Central Government." We have tried to find out the
result of the said directions. We have noticed that pursuant to the
observations of this Court in Vellore Case, certain notifications have been
issued by including a High Court Judge in the said authority. In the
notification So.671(E) dated 30.9.1996 issued by the Government of India for
the State of Tamil Nadu under section 3(3) of the 1986 Act, appointing a `Loss
of Ecology (Prevention and Payment of Compensation) authority, it is stated
that it shall be manned by a retired High Court Judge and other technical
members who would frame a scheme or schemes in consultation with NEERI etc. It
could deal with all industries including tanning industries. A similar
notification So. 704 E dated 9.10.1996 was issued for the `Environmental Impact
Assessment Authority' for the NCT including a High Court Judge. Notification
dated 6.2.1997 (No.88E) under section 3(3) of the 1986 Act dealing with shrimp
industry, of course, includes a retired High Court Judge and technical persons.
As stated earlier, the Government of India should, in our opinion, bring about
appropriate amendments in the environmental statutes, Rules and notification to
ensure that in all environmental Courts, Tribunals and appellate authorities
there is always a Judge of the rank of a High Court Judge or a Supreme Court
Judge, - sitting or retired - and Scientist or group of Scientists of high
ranking and experience so as to help a proper and fair adjudication of disputes
relating to .pl68 environment and pollution. There is also an immediate need
that in all the States and Union Territories, the appellate authorities under
section 28 of the Water (Prevention of Pollution) Act, 1974 and section 31 of
the Air (Prevention of Pollution) Act, 1981 or other rules there is always a
Judge of the High Court, sitting or retired and a Scientist or group of
Scientists of high ranking and experience, to help in the adjudication of
disputes relating to environment and pollution. An amendment to existing
notifications under these Acts can be made for the present. There is also need
for amending the notifications issued under Rule 12 of the Hazardous Wastes
(Management & Handling) Rules, 1989. What we have said applies to all other
such Rules or notifications issued either by the Central Government or the State
Governments. We request the Central and State Governments to take notice of
these recommendations and take appropriate action urgently. We finally come to
the appellate authority under the National Environment Appellate Authority Act,
1997. In our view it comes very near to the ideals set by this Court. Under
that statute, the appellate authority is to consist of a sitting or retired
Supreme Court Judge or a sitting or retired Chief Justice of a High Court and a
Vice-Chairman who has been an administrator of high rank with expertise in
technical aspects of problems relating to environment; and .pl65 Technical
Members, not exceeding three, who have professional knowledge or practical
experience in the areas pertaining to conservation, environmental management,
land or planning and development. Appeals to this appellate authority are to be
preferred by persons aggrieved by an order granting environmental clearance in
the areas in which any industries, operations or processes etc. are to be
carried or carried subject to safeguards. As stated above and we reiterate that
there is need to see that in the appellate authority under the Water
(Prevention of Pollution) Act, 1974, the Air (Prevention of Pollution) Act, and
the appellate authority under Rule 12 of the Hazardous Wastes (Management &
Handling) Rules, 1989, under the notification issued under section 3(3) of the
Environment (Protection) Act, 1986 for National Capital Territory and under
section 10 of the National Environment Tribunal Act, 1995 and other appellate
bodies, there are invariably Judicial and Technical Members included. This
Court has also observed in M.C.Mehta vs. Union of India and Shriram Foods &
Fertilizers Case [ 1986 (2) SCC 176] (at 262) that there should be a right of
regular appeal to the Supreme Court, i.e. an appeal incorporated in the
relevent statutes.
This
is a matter for the Governments concerned to consider urgently, by appropriate
legislation whether plenary or subordinate or by amending the notifications.
The
duty of the present generation towards posterity : Principle of
Inter-generational Equity: Rights of the Future against the Present:
The
principle of Inter-generational equity is of recent origin. The 1972 Stockholm
Declaration refers to it in principles 1 and 2. In this context, the
environment is viewed more as a resource basis for the survival of the present
and future generations. .lm10 .rm55 Principle 1 states:
"Man
has the fundamental right to freedom, equality and adequate conditions of life,
in an environment of quality that permits a life of dignity and well-being, and
he bears a solemn responsibility to protect and improve the environment for
present and future generations........" Principle 2:
"The
natural resources of the earth, including the air, water, lands, flora and
fauna and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations through careful
planning or management, as appropriate." Several international conventions
and treaties have recognised the above principles and in fact several
imaginative proposals have been submitted including -the locus standi of
individuals or groups to take out actions as representatives of future
generations, or appointing Ombudsman to take care of the rights of the future
against the present (proposals of Sands & Brown Weiss referred to by
Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur, paras 97, 98 of his report).
Whether
the Supreme Court while dealing with environmental matters under Article 32 or
Article 136 or High Courts under Article 226 can make reference to the National
Environmental Appellate Authority under the 1997 Act for investigation and
opinion:
In a
large number of matters coming up before this Court either under Article 32 or
under Article 136 and also before the High Courts under Article 226, complex
issues relating to environment and pollution, science and technology have been
arising and in some cases, this Court has been finding sufficient difficulty in
providing adequate solutions to meet the requirements of public interest,
environmental protection, elimination of pollution and sustained development.
In some cases this Court has been referring matters to professional or
technical bodies. The monitoring of a case as it progresses before the
professional body and the consideration of objections raised by affected
parties to the opinion given by these professional technical bodies have again
been creating complex problems.
Further
these matters sometime require day to day hearing which, having regard to other
workload of this Court, (- a factor mentioned by Lord Woolf) it is not always
possible to give urgent decisions. In such a situation, this Court has been
feeling the need for an alternative procedure which can be expeditious and
scientifically adequate. Question is whether, in such a situation, involving
grave public interest, this Court could seek the help of other statutory bodies
which have an adequate combination of both Judicial and technical expertise in
environmental matters, like the Appellate Authority under the National
Environmental Appellate Authority Act, 1997? A similar question arose in
Paramjit Kaur vs. State of Punjab [1998 (5) SCALE 219 = 1998 (6) J.T.338],
decided by this Court on 10.9.1998.
In
that case, initially, W.Petitions (Crl.) No.447 and 497 of 1995 were filed
under Article 32 of the Constitution of India alleging flagrant violations of
human rights in the State of Punjab as disclosed by a CBI report submitted to
this Court.
This
Court felt the need to have these allegations investigated by an independent
body. This Court then passed an order on 12.12.1996 requesting the National
Human Rights Commission to examine the matter. The said Commission is headed by
a retired Chief Justice of India and other expert Members. After the matter
went before the said Commission, various objections were raised as to its
jurisdiction. It was also contended that if these issues were to be otherwise
inquired into by the Commission upon a complaint, they would have stood time
barred. These objections were rejected by the Commission by an elaborate order
on 4.8.1997 holding that once the Supreme Court referred the matters to the
Commission, it was acting sui Juris, that its services could be utilised by the
Supreme Court treating the Commission as an instrumentality or agency of the
Supreme Court, that the period of limitation under the Protection of Human
Rights Act, 1993 would not apply, that in spite of the reference to the
Commission, the Supreme Court would continue to have seisin of the case and any
determination by the Commission, wherever necessary or appropriate, would be
subject to the approval of the Supreme Court. Not satisfied with the above
order of the Commission, the Union of India filed clarification application
Crl.M.P. No.6674 of 1997 etc. This Court then passed the order aforementioned
in Paramjit Kaur vs. State of Punjab [1998 (5) SCALE 219 = 1998 (6) J.T. 332
(SC)] on 12.12.1998 accepting the reasons given by the Commission in rejecting
the objections. In that context, this Court held that (i) the Commission was an
expert body consisting of experts in the field (ii) if this Court could
exercise certain powers under Article 32, it could also request the expert body
to investigate or look into the allegations, unfettered by any limitations in
the Protection of Human Rights Act, 1993, (iii) that by so referring the
matters to the Commission, this Court was not conferring any new jurisdiction
on the Commission, and (iv) that the Commission would be acting only in aid of
this Court. In our view, the above procedure in Paramjit Kaur vs. State of
Punjab is equally applicable in the case before us for the following reasons.
Environmental concerns arising in this Court under Article 32 or under Article
136 or under Article 226 in the High Courts are, in our view, of equal
importance as Human Rights concerns. In fact both are to be traced to Article
21 which deals with fundamental right to life and liberty. While environmental
aspects concern `life', human rights aspects concern `liberty'. In our view, in
the context of emerging jurisprudence relating to environmental matters, - as
it is the case in matters relating to human rights, - it is the duty of this
Court to render Justice by taking all aspects into consideration. With a view
to ensure that there is neither danger to environment nor to ecology and at the
same time ensuring sustainable development, this Court in our view, can refer
scientific and technical aspects for investigation and opinion to expert bodies
such as the Appellate Authority under the National Environmental Appellate
Authority Act, 1997. The said authority comprises of a retired Judge of the
Supreme Court and Members having technical expertise in environmental matters
whose investigation, analysis of facts and opinion on objections raised by
parties, could give adequate help to this Court or the High Courts and also the
needed reassurance. Any opinions rendered by the said authority would of course
be subject to the approval of this Court. On the analogy of Paramjit Kaur's
Case, such a procedure, in our opinion, is perfectly within the bounds of the
law. Such a procedure, in our view, can be adopted in matters arising in this
Court under Article 32 or under Article 136 or arising before the High Courts
under Article 226 of the Constitution of India.
The
order of reference:
After
the above view was expressed to counsel on both sides, certain draft issues
were prepared for reference. There was some argument that some of the draft
issues could not be referred to the Commission while some others required
modification. After hearing arguments, parties on both sides agreed for
reference of the following issues to the Appellate Authority under the National
Environmental Appellate Authority Act, 1997.
We
shall now set out these issues. They are: (a) Is the respondent industry a
hazardous one and what is its pollution potentiality, taking into account, the
nature of the product, the effluents and its location? (b) Whether the
operation of the industry is likely to affect the sensitive catchment area
resulting in pollution of the Himayat Sagar and Osman Sagar lakes supplying
drinking water to the twin cities of Hyderabad and Secunderabad? We may add
that it shall be open to the authority to inspect the premises of the factory,
call for documents from the parties or any other body or authority or from the
Government of Andhra Pradesh or Union Government and to examine witnesses, if
need be. The Authority shall also have all powers for obtaining data or
technical advice as it may deem necessary from any source. It shall give an
opportunity to the parties or their counsel to file objections and lead such
oral evidence or produce such documentary evidence as they may deem fit and
shall also give a hearing to the appellant or its counsel to make submissions.
A
question has been raised by the respondent industry that it may be permitted to
make trial runs for atleast three months so that the results of pollution,
could be monitored and analysed.
This
was opposed by the appellant and the private respondent. We have not thought it
fit to go into this question and we have informed counsel that this issue could
also be left to the said Authority to decide because we do not know whether any
such trial runs would affect the environment or cause pollution. On this aspect
also, it shall be open to the authority to take a decision after hearing the
parties. Parties have requested that the authority may be required to give its
opinion as early as possible. We are of the view that the Authority could be
requested to give its opinion within a period of three months from the date of
receipt of this order. We, therefore, refer the above issues to the above-said
Appellate Authority for its opinion and request the Authority to give its
opinion, as far as possible, within the period above-mentioned. If the
Authority feels any further clarifications or directions are necessary from
this Court, it will be open to it to seek such clarifications or directions
from this Court.
The
Company shall make available photo copies of the paper books filed in this
Court or other papers filed in the High Court or before the authority under
section 28 of the Water Act, 1974, for the use of the Appellate Authority. The
Registry shall communicate a copy of this order to the Appellate Authority
under the National Environmental Appellate Authority Act, 1997.
Matter
may be listed before us after three months, as part-heard. Ordered accordingly.
In the context of recommendations made for amendment of the environmental laws
and rules by the Central Government and notifications issued by the Central and
State Governments, we direct copies of this judgment to be communicated to the
Secretary, Environment & Forests (Government of India), New Delhi, to the
Secretaries of Environment & Forests in all State Governments and Union
Territories, and to the Central Pollution Control Board, New Delhi. We further
direct the Central Pollution Control Board to communicate a copy of this
judgment to all State Pollution Control Boards and other authorities dealing
with environment, pollution, ecology and forest and wildlife. The State
Governments shall also take steps to communicate this judgment to their
respective State Pollution Control Boards and other authorities dealing with
the above subjects - so that appropriate action can be taken expeditiously as
indicated in this judgment.
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